Is Harry a Menace to the Public Interest?
The Law Society’s (LSUC’s) production to prove Kopyto’s poor character and turf him from the ranks of paralegals ended with more of a whimper than a bang July 24th and July 25, 2012. An intermission has been called. It will end on Wednesday September 7, 2012. When the curtain rises, Kopyto will play the central role.
The last two hearing days of the Law Society versus Harry Kopyto saw one seasoned professional and three aspiring amateurs portray the role of witnesses against Kopyto. Each of them has been cast as lawyers who had close encounters of the professional kind with Kopyto. They were opposing his clients in proceedings in the Superior Court where paralegals are not permitted on stage. Their performances were part of a bleak plotline. The Law Society wishes to turn the drama into a Greek tragedy for Kopyto. The subplots are gone. The focus is on Kopyto’s role as a danger to “the public interest.” Why? Because of his defiant assumption of the role of a lawyer when he was scripted to be a paralegal. Kopyto’s fatal flaw that will bring his demise? Unauthorized practice (Gulp!). This renders him a poor character if not an outright villain. There he is, tying his clients to the railway tracks while a train zooms towards them! The denouement? He must be removed from the judicial stage.
The audience for the LSUC production is a three-person Panel headed by Chair Margot Blight, an accomplished actor in her own right. She herself may aspire to the role of a judge—her résumé as a loyal partisan of Big Government and Big Law is sans pareil. In this production, however, the LSUC directors expect her to portray a fair and firm reviewer. But the Panel is not a mere passive audience, occasionally cheering a choice performance here or applauding a well-delivered soliloquy there. The Panel is an audience that actively interjects, suggesting directions for the plotline. There has been a plethora of not so subtle dramaturgical hints to the LSUC lawyers acting as prosecutors on how the script should evolve. Call it interactive theatre. The two LSUC prosecutors have their ears close to the ground. Every whisper from their audience sends them buzzing to refocus the script. Some characters have been tossed, others unexpectedly summoned. But the dominant theme, now hammered home unadorned, is that Harry is ungovernable, a Menace to the Public Interest.
Act One – Is Zibarros Telling the Truth?
First on stage as the curtain was raised on July 24th was a seasoned performer, James Zibarros. (Catcalls! Catcalls!) He is featured in big black letters on the LSUC’s marquee outside the Museum Room at Osgoode Hall where the drama unfolds. Having played a dominant role in an earlier stage of the production, Zibarros is limited to a one hour performance on this day, his final appearance. The direction was brief and to the point. Joseph Markin is playing a lawyer Kopyto referred many of his clients to, to act as their counsel where Kopyto is forbidden a role to play. One catch. Markin had been ordered five years earlier not to associate with Harry “in any way”. Still, Markin’s script requires him to make a brief appearance as counsel for Harry’s client who is being sued by James Zibarros.
The back story? Zibarros, is a high-end litigation expert used to stealing the show. A real prima donna. Zibarros’ client, (the Plaintiff), pleaded that Harry’s client, (the Defendant), engaged in a fraudulent marriage with her in order to immigrate to Canada. The Defendant lived happily in Cuba when the Plaintiff met him while vacationing there. Harry assisted his client in the lawsuit against him without charge at the request of another lawyer, an MPP and former Cabinet Minister in the Ontario Government. The setting? Markin’s walk-on role took place at the examination for discovery that had been scheduled of Harry’s client in the court proceedings. That’s when lawyers grill their opposing clients on the record. Kopyto had asked Markin to play the role of his client’s lawyer at the examination.
At this point, there are two versions to the plot. In the original script, written by the Law Society Investigation Department when first approached by Zibarros, Zibarros said he telephoned Markin following the examination to threaten to report him for breaching the non-association order with Harry Kopyto if he continued acting for the Defendant in the lawsuit. Markin, in poor health, unable to maintain a law office, fearful of losing his licence for associating with Harry, demurred. It was a fast exit to the right.
Who Should the Audience Believe?
When Zibarros gave his performance on July 24th, he had different lines. No! No! No!—he never threatened to turn Markin in—what a dastardly deed that would be! Zibarros, an accomplished and creative performer, merely telephoned Markin to find out if he would continue to play any further role in the litigation. Zibarros testified that he wanted to enter into a dialogue with Harry’s client directly (even though the client couldn’t understand English at this time). Zibarros wanted Markin to give him the Defendant’s contact information for that purpose (although he already had it). Who should the audience believe? Was Zibarros caught in a web of his own deceit and duplicity? (Drumroll…) Or was he telling the truth? Was Zibarros threatening to rat on Joe to isolate his client and leave him defenceless and unrepresented, a delicate morsel for Zibarros to nibble on? Or was he merely clearing with Joe that it was okay to speak to the Defendant? (SPOILER ALERT! Markin had told Harry at that time that he backed off because he was threatened by Zibarros).
Some clues as to who should be believed emerge from backstage gossip circulating behind the curtain. Zibarros readily admitted that he knew Joe Markin was ordered not to associate with Kopyto at the time he phoned him. Zibarros had already had the Defendant’s contact information for several months. In fact, his office had communicated directly with the Defendant. Zibarros also admitted mentioning to Markin during the call that Markin was in breach of the non-association order. Why would he mention this, if to no effect? Zibarros also admitted that Joe was not on the record as lawyer for the Defendant. Why would Zibarros ask Joe for permission to speak to a non-client—especially when Joe already advised Zibarros that his only involvement would be at the examination?
Zibarros Had a Motive to Prevaricate
Zibarros had a motive to prevaricate. His own client, a university professor living in Montreal, was yearning for a fast end to the court case. She sent not exactly love letters behind Zibarros’ back to the Defendant. The language she used would have attracted the censor’s scissors. She threatened him with deportation, among other things, if he wouldn’t accept the settlement. She wanted closure. But the Defendant held fast. He refused an ultimatum offer made to him earlier by Zibarros to settle the case. Aside from the fact that he had no money, he had done nothing wrong to pay for.
Zibarros’ agenda was to push the case to a fast kill. A professor’s salary is not limitless. Could she afford what might be a lengthy and hotly contested trial? Remember Zibarros’ fine characterization. A senior expert litigator who worked at the same 700-member mega law firm where Panel Chair Blight now works. (Different roles but the same collegiality.) He lectures in civil litigation. He is licenced in three different jurisdictions in two different countries. You wanna bet that he doesn’t come cheap? He drove Markin off the stage with threats and reported him to the LSUC in breach of his promise to him not to do so. He sicced the LSUC on Kopyto for unauthorized practice after Kopyto failed to cinch his proposed settlement. He wanted to cut Kopyto and Markin from the Defendant’s supporting cast. The Defendant would be isolated. He couldn’t speak English. He lived on social assistance. He was so poor he qualified for exemption from court filing fees. He would be easy to vanquish by a merciless antagonist in an unfamiliar courtroom setting. So it was logical for Zibarros to want to clear the stage of the Defendant’s supporting cast. But Kopyto, albeit from the backstage, stuck with his client, making a trial possible–maybe even inevitable. A trial that Zibarros’ client could not afford. A trial that Zibarros, notwithstanding being typecast as a wily lawyer could not prevent. In fact, Zibarros admitted that he never expected Harry’s client to defend the case knowing his client’s circumstances. Instead, here comes Kopyto in a dramatic twist to the plot!
In the final scene of this act, the plot line becomes predictable. It is clear that the Plaintiff couldn’t afford Zibarros’ astronomical fees. Zibarros commands a star’s salary. His client couldn’t pay the ticket. So she terminated his services in an unexpected surprise ending.
Before Zibarros took his final bow, Kopyto asked him how many times he had encountered unauthorized practice. After all, the LSUC wanted the audience to cringe at the threat of a vast wave of unauthorized, unsupervised practitioners flooding the casting auditions. (Imagine one hundred Kopytos!) This was the underlying theme of the production. But Zibarros’ answer was, for once, unembellished: “This is the only time.”
Act Two – A Cold and Calculating Role for David Arbesman
Act Two opens with Toronto lawyer David Arbesman featured in the role of a heartless and calculating counsel. Not one to fool around with. (There he is, twitching his moustache!) Although not as well seasoned as Zibarros, he knows the score. The script for Act Two echoed Kopyto’s dealings with Zibarros in Act One. Kopyto’s client denied owing Arbesman’s client, a realtor, a commission for property that Kopyto’s client sold. Kopyto’s client claimed an agreement not to charge him commission because the Plaintiff made a killing in an earlier transaction with him. In this scene, David Arbesman auditioned successfully for the role of the realtor’s lawyer.
Harry’s client didn’t file a defence to the Superior Court lawsuit that Arbesman commenced against him although he served it in time. Kopyto filed a motion to set aside default proceedings and asked (once again) Joseph Markin to appear on the motion. Markin agreed. Meanwhile, Arbesman, who knew Kopyto was managing his defence, wrote Harry’s client to persuade him to dump Harry who was engaged in unauthorized practice.
Kopyto’s client had known Harry for twenty-five years. He refused to be intimidated by Arbesman. He knew Harry was the nemesis of Big Law. He wanted a fighter. His was an uphill case. The agreement not to charge commission was not put in writing. Harry’s client had trusted the realtor. He needed a strong advocate. Harry, barred or disbarred, was his man bar none.
Meanwhile, Markin wrote Arbesman telling him he would appear on the motion to reopen the case. Arbesman, sharp as a needle, checked Joe’s status on the Law Society website. Aha! The non-association order with Harry! Arbesman took a deep breath. Then, lightening struck. Arbesman immediately faxed Markin challenging his right to appear. Markin’s face turned white when he received the fax from Arbesman sent just one day before the hearing. Sensing his vulnerability and afraid to be reported to the LSUC again, Markin backed off his agreement to appear on the motion, thereby ending his cameo appearance.
Harry Gags on the Script
Kopyto was stuck. The motion had already been listed to proceed the following day. Now Harry’s client’s lawyer was scared off. Harry had a role scripted for him by the LSUC as someone who sacrifices his clients for his own interests. Harry, they said, deceitfully masks his involvement to avoid being charged with unauthorized practice. But Harry gagged on this script. He couldn’t read those lines. It wasn’t him. Against the director’s notes, Harry arranged for his secretary to attend at the hearing with a letter written by him over his own name asking for the case to be adjourned so that his client could obtain counsel. Harry risked the consequences of being outed to protect his client. The adjournment was declined but the judge ruled that the motion to reopen the case would fail because the defence was weak even if a lawyer had been present. A subsequent appeal lost by Harry’s client confirmed this. Harry’s client lost his case but at least had the satisfaction of airing his issues.
Arbesman’s script was written for a cold and oppressive litigator. He was well cast. His testimony as a witness revealed an uncooperative approach. Arbesman threatened Markin in order to pursue his own client’s interest. He blocked the filing of Harry’s client’s defence (a technicality) even though he received it before the deadline.
Harry’s client did not regret his efforts to obtain justice. He never complained about Harry. In fact, Harry’s client went so far as to try to lay criminal charges against Arbesman’s client. As with many other clients who seek Harry’s help, Harry’s client preferred to get help from a disbarred lawyer who is a fighter than from a member of one of the chummy cliques of lawyers who function more like adjusters than advocates.
The action in this act exposes the myth of the LSUC’s efforts to portray Harry as dishonestly denying his involvement in assisting his clients. It shows Harry’s willingness to take the bullets meant for his clients. Harry’s client wanted the freedom to fight a case on principle most lawyers would avoid and Harry responded. Is this evidence of conduct that threatens the public interest?
Act Three – Up and Coming Star Scott Hattie
Up and coming star Scott Hattie dominates the dialogue in the Third Act. Harry’s client was suing the Ministry of Transport for refusing him a driver’s licence on grounds of mental incompetence. The client had been represented in two different actions by a lawyer he was not happy with and could not afford. He turned to Harry. Part of the litigation had been launched in the Toronto Small Claims Court. Harry brought a motion to join it with an existing Superior Court action for similar relief. (Tut! Tut! There he goes—unauthorized practice again!) All the paperwork came from Harry’s office. Anybody who was interested would not need a Doctorate of Jurisprudence to figure out that Harry was assisting the client. In fact, in all of Harry’s cases, no effort was ever made by Harry to deny his involvement when asked. Harry stayed in the backstage so that his role would not become an issue to the detriment of his client. He was not always successful.
When the Superior Court required his client’s attendance at a status hearing to review the case, Harry asked his client to attend. It was not a complicated review. The cases are routinely adjourned to permit pretrial proceedings to be completed. Scott Hattie, the lawyer for the Ministry of Transport, attended the status review. He saw Harry’s client there. Harry’s client naively told him that Harry was helping him with the case. (What could possibly be wrong with that?) Hattie told Harry’s client that Harry was a disbarred lawyer who could not represent him. The case was adjourned for four months to allow Harry’s client to retain a lawyer.
Harry’s client was trusting. He did not realize he was being manipulated. He forgot why he retained Harry in the first place. Until then, Harry’s client was satisfied with all of Harry’s services. Harry helped him in an earlier appeal of a charge of driving while suspended. Harry obtained a favourable medical opinion for his client to obtain a current driver’s licence. But what Harry’s client did not focus on was that he would not be able to afford a lawyer as he was on social assistance and unemployed. Harry was his lifeline. After being manipulated by Hattie to terminate Harry’s services, the client was a goner.
Harry’s client’s lawsuit was dismissed in February, 2012 on a motion for summary judgment. The client, self-represented, was at an extreme disadvantage in a suit against the Ontario Government. The case was dismissed because Harry’s client failed to present a medical report confirming his client’s competence to drive at the time that the Ministry of Transport denied him a licence. Harry was in the process of obtaining such a report when his client was frightened into refusing his help. Further, Harry’s client—listen to the drumbeats from the orchestra pit—had never represented himself as a lawyer to his client according to the client’s statement to the Law Society! This evidence was cut from the script. Such is the subtext that remained hidden from the audience watching the LSUC’s production of Act Three.
Act Four–Power Speaks to Power Through Subliminal Signals
From stage left emerges performer Evan VanDyk representing ACE, a major insurance company. Harry’s client was brutally terminated from a senior position with the insurance company where she had worked virtually her entire life. She suffered a medical calamity that resulted in lengthy hospitalization and permanent disability within weeks of an abusive termination. Joe Markin agreed to act as her lawyer at Harry’s request. The insurance company counterclaimed against her. Using overkill, they also sued her husband and several other persons who they claimed had defrauded their company. Harry filed the initial documents on behalf of all these parties to protect their interests. However, the complexity of the case eventually required separate representation for some of them.
Enter the Dragon. Evan VanDyk found out that Harry had given advice to the husband of the fired client and that Joe Markin had acted for her in the main action. Breach of the Non-Association Order! (What contagious disease does Harry have?) Unauthorized Practice! VanDyk, sitting on this information for almost three months, finally wrote back the Law Society about his discovery “in case you will find it relevant or important.” What was so dangerous in the script of this Act? Kopyto and Markin had ended their involvement in this case much earlier. Why did VanDyk even bother to write the LSUC? To protect the public? (Yea, sure.) The purpose was to protect lawyer’s turf from trespassers. Lawyers rule in their realm.
VanDyk works for Heenan Blaikie, the sixth largest law firm in Canada with international offices. It represents the Council of Canadian Employers before the International Labour Organization. It has graduated two recent Prime Ministers as well as a slew of senior judges including a Supreme Court of Canada judge and a former Associate Chief Justice of Ontario. Harry’s impudent actions in representing clients who seek his services with full knowledge of his background irks Big Law. Harry’s insolence in refusing to abandon clients who want a strong fighter on their side or who cannot afford access to justice at all is what galls them most. Just as Harry applied his skills helping his vulnerable clients, Evan VanDyk was just doing his job in reporting Harry’s involvement in the case to the Law Society and attempting to further isolate him by attacking Joseph Markin. But what different jobs they have! VanDyk was protecting lawyers’ interests in a monopoly profession serving power and money. Harry was providing affordable access to justice for victims of corporate abuse.
Where Are Harry’s Clients?
For a while, the Law Society rests its case as the theatre goes dark. The curtain is down. The thunderous applause dissipates. The curtain calls are over. Fade to black. Soon, Harry will have his chance to defend himself on Wednesday, September 7th when the intermission ends. In the meantime, some questions bug us about the production to date. Who is the Law Society protecting “in the public interest?” All the witnesses against Harry have been lawyers and the Law Society investigator except for one client. Where is the array of clients that should have been paraded to prove Harry’s poor character? One client was called out of hundreds and hundreds that Harry has helped over the years. Many of them would have received no representation at all without Harry. The one client who testified was clearly unwell, unable to pursue his own legal interests and even sabotaged Harry’s efforts to help him. Harry’s clients would have been denied their dignity and integrity without being able to assert or defend their legal interests without him. That’s why the LSUC didn’t want them on stage.
There are rules that oppress people and deny them fundamental rights. Where is the dignity and humanity in obeying such rules? Where is the honour and self-respect in subscribing to the Big Lie that the judicial system is equally accessible to everyone? The Law Society’s production has failed to live up to its promos and billings. It is class-oriented, oppressive, elitist, exclusivist, money-dominated, expansive, resource-rich and monopolistic, not to speak of poor theatre. It is Big Law that stands in contempt of the public interest. The LSUC is a well-oiled machine with an army of extras out to destroy gadflies and mavericks like Harry. They offer deus ex machina as the only intervention that Harry’s vulnerable clients can make use of. Unauthorized practice is not ideal and it is not a general solution to the problem of unaffordable access to justice. But in most of the cited cases, Harry offered access and hope to those who would have been crushed in the courts without his help. He is their voice on the stage.
The lights are now dim in the theatre at Osgoode Hall, Museum Room for a short while. Until Wednesday September 7th at 9:30 a.m., when the show proceeds to a final denouement with Harry at centre stage. Be there.